Can judicial candidates solicit donations? Supreme Court to weigh case.

20 Jan 2015 | Author: | No comments yet »

Hillsborough case at heart of Supreme Court arguments on judges’ fundraising.

WASHINGTON — Almost five years to the day after the Citizens United decision reshaped American politics, the Supreme Court on Tuesday will turn its attention to judicial elections.WASHINGTON — She challenged a respected incumbent and lost by a mile, taking only 20 percent of the vote in a bid to sit on the Hillsborough County court.For years, those who favor restrictions on campaign spending have insisted that their real interest lies in fighting corruption, not limiting political speech. Voters in the Tampa area didn’t think much of Williams-Yulee’s campaign for county judge in 2010, and the group that regulates Florida’s lawyers didn’t much like Williams-Yulee’s campaign tactics.

Supreme Court will hear oral arguments Tuesday in a case that could undo state laws around the country that limit judicial candidates from asking potential donors for campaign contributions. In the other corner: Lanell Williams-Yulee, a losing county court candidate who ran afoul of that canon in 2009 and was reprimanded for signing a fundraising letter. It stems from her 2010 campaign against Judge Dick Greco Jr. and could have sweeping national implications in the way judicial candidates raise money. But 30 of the 39 states with judicial elections have tried to draw the line by forbidding judicial candidates to personally ask for money, saying that such solicitations threaten the integrity of the judiciary and public confidence in the judicial system. Williams-Yulee ran into trouble in 2009 when she sent out, and posted on her website, a signed letter asking for “an early contribution of $25, $50, $100, $250, or $500.” That violated a Florida Bar rule about personal solicitations but Williams-Yulee, who drew a reprimand and a fine, challenged it on First Amendment grounds.

The Florida Bar, stems from a 6-year-old ethics violation in a county court race that predated the high court’s 2010 Citizen’s United decision, which, along with a handful of other rulings, have upended many traditional limits on money in politics. Like similar laws in 29 of the other 38 states where at least some judges are elected, it was a straightforward way to reduce a serious threat to judicial independence.

Or perpetuating a lie that the candidate is completely removed from all fundraising activities, leaving the electorate ignorant when they make their choice?” That’s a simplistic view, said Daniel Wallach, a Fort Lauderdale lawyer who filed a friend of the court brief on behalf of three former Florida Supreme Court justices and a number of noted lawyers in the state. “The interest here isn’t just merely quid pro quo corruption. Instead, “the ask” must come from a separate campaign committee, a system designed to insulate judges from bias toward the lawyers and litigants who donate — or choose not to — and then come before them in court.

Florida’s law allows contributions of up to $1,000 to judicial campaigns, and that limit cannot be significantly lowered (much less banned) without violating the First Amendment. On the other hand, the concept of judges as neutered referees without ideological leanings was debunked by President Obama in 2009 as he considered his first Supreme Court nomination, which eventually went to Sonia Sotomayor.

Nobody would suggest that their selection is totally free of politics, but potential federal judges are spared from addressing campaign rallies, forming political alliances, raising funds and kissing babies. Marcus Carey, who twice lost judicial elections in Kentucky, said there was no point to requiring that contribution requests be made through intermediaries. “There are fund-raising events,” said Mr. Appointment of state judges was also the rule in the earliest years of this country, but in the 19th century some states moved to making the position elective.

Only Connecticut, Delaware, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, Rhode Island, South Carolina, Vermont and Virginia appoint all judges. They agree that states have a compelling interest in protecting judicial independence, but argue that the ban on direct requests for cash is futile, since candidates may still establish fund-raising committees and express their gratitude to individual donors. Yet the court’s decision may be more far-reaching: if it finds the Florida ban unconstitutional, Myers said, the bans in states with similar rules will likely be invalidated. “It’s a blanket prohibition on speech, including some speech which is fairly innocuous and probably doesn’t rise to the level of the concerns that were the reasons it was put in place to begin with,” Myers said. In 2002, the court struck down rules aimed at fostering impartiality among judges that barred candidates for elected judgeships from speaking out on controversial issues.

But the decision to recuse is generally left up to the individual judge, and the survival of remaining contribution limits under the current Supreme Court is far from certain. Like most campaign-finance restrictions, the speech ban on solicitation places another burden on challengers running for office — particularly those who lack the wealth to finance their own campaigns. Four former chief justices from those states filed a brief describing their own use of a practice they said was “ingrained in our political and legal cultures.” In an interview, one of the former chief justices, Thomas R.

She was reprimanded by the state bar and the state Supreme Court for violating a canon of ethics saying that judicial candidates “shall not personally solicit campaign funds” and must delegate fund-raising to a committee. Phillips, who served on the Texas Supreme Court, added that “dialing for dollars sometimes results in untoward things slipping out during those conversations.” Mr.

Williams-Yulee argued in court papers that states that worry about bias among judges should focus on rules that force judges to recuse themselves in cases where they may have a conflict or limits on the size of campaign contributions. Judicial elections — once sleepy contests removed from the blood sport of politicking — have become multi-million dollar contests in recent election cycles. Candidates for state high courts spent at least $5.2 million on television ads, with Michigan candidate Richard Bernstein spending an estimated $1.3 million for his successful election campaign, according to the Center for Public Integrity’s analysis of data from media tracking firm Kantar Media/CMAG.

That’s something to keep in mind the next time self-appointed campaign-finance reformers — whose legal briefs unanimously support the Florida law — tell us that their proposed restriction won’t impact our First Amendment freedoms. Florida Bar, No. 13-499, concerns Lanell Williams-Yulee, who lost a race for a seat on the county court in Hillsborough County, Fla., which includes Tampa. Former elected chief justices in Alabama and Texas — which permit candidates for judgeships to ask for campaign funds — called on the court to uphold the prohibition and said they are “well-acquainted with the genuine dangers — and sometimes actual abuse” when candidates solicit contributions from lawyers and others. Some of the backers of the limits also have pointed to comments from retired Supreme Court Justice Sandra Day O’Connor, who has suggested that she regrets her vote in the 5-4 decision in 2002 to strike down the rules on what judicial candidates can say.

And while it’s true that preventing a judge from personally soliciting contributions doesn’t keep her in the dark about who is funding her campaign, there is something especially egregious about a judicial candidate personally asking for money from people who might someday have a case before him or her. But in a friend-of-the-court brief, the American Civil Liberties Union wrote that “campaign speech by candidates for judicial office, like campaign speech by candidates for other offices, is entitled to the highest degree of First Amendment protection.” Such a view was underscored by Justice Antonin Scalia’s majority opinion in the 2002 ruling on The Republican Party of Minnesota v. In a landmark 1976 case, the court said that the 1st Amendment is not violated by election laws that seek to prevent the “appearance of improper influence” over candidates. In barring not only one-on-one requests but also mass mailings and speeches to large groups, one of her briefs said, Florida’s solicitation ban censors speech that is unlikely to give rise to judicial corruption.

The ban also does too little, the brief continued, by allowing candidates to raise money through campaign committees and then personally thank their donors. A fourth left the court in connection with a scandal including draft opinions ghostwritten by lobbyists. “Florida is unlike all the other states that have elected judges,” said Mr. Williams-Yulee, said less restrictive ways of ensuring judicial integrity included bans on one-on-one solicitations of parties in pending cases, the required disclosure of contributions and public financing of judicial elections.

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